Opponents have claimed that passage of Measure 80 would put Oregon “out of compliance” with the Drug Free Workplace Act (DFWA) and that Oregon could “lose millions annually in federal aid and grants affecting schools, businesses and government contracts.” The Oregon State Sheriffs’ Association is one of the most credible sources of this claim, and they attribute it to “research done by the California Chamber of Commerce.” Despite the apparent credibility of this source, the statement is blatantly false.
What the sheriffs fail to mention is that this “research” was specific to Proposition 19, the failed 2010 initiative in California that would have legalized marijuana for adults, but also included specific language intending to protect marijuana consumers from discrimination. The research from the California Chamber of Commerce cites the text in question in their Legal Analysis:
“No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this Act or authorized pursuant to Section 11301 of this Act. Provided however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.” Page 8, Section 3 of the Initiative, Health and Safety Code Section 11304 Sub.(c).
Measure 80 contains no such language. There are no changes in any laws that affect the workplace, nor are there any requirements that would place Oregon at risk of being “out of compliance” with the DFWA. Under Measure 80, employers could still prohibit the use of marijuana by employees because marijuana use would not be a protected group such as a disability, nationality or gender.
In fact, this exact situation has already been addressed in the Oregon Supreme Court, in Emerald Steel v BOLI, where they concluded that even if state law “authorized” the use of a particular drug that was federally prohibited, that the drug would still be deemed “illegal use of drugs” for purposes of workplace standards and therefore not protected even under laws that require accommodation for disabilities.
In other words, even if Oregon law authorized the use of marijuana within the state, an employer would be justified in terminating the employee because federal law still would define the use as “illegal drug use.” Short a specific law that grants protection to marijuana users (that would itself face a legal challenge to determine if it was valid or preempted by federal law), employers will have the same rights managing marijuana use by employees after passage of Measure 80 as they do currently.
The DFWA only requires that certain employers provide postings in the workplace informing employees that they will not tolerate drug or alcohol use at work and provide a drug-free awareness program that informs employees of the policies of the employer as well as any treatment or drug counseling available through the employer. Further, those who are required to comply with the DFWA (specifically, federal contractors and those who receive federal grants larger than 25,000 – it is not even applicable to subcontractors) are required to report any drug convictions by employees within 10 days. Despite popular belief, the DFWA doesn’t even require drug testing!
The United States Department of Labor provides some insight into the issue of drug testing in the workplace, and specifically states:
The majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs. Also, drug testing is NOT required under the Drug-Free Workplace Act of 1988. On the other hand, most private employers have the right to test for a wide variety of substances. It is very important that before designing a drug-testing program you familiarize yourself with the various state and Federal regulations that may apply to your organization.
Despite the lie being repeated time and time again – no matter how many times you hear that “Measure 80 would put Oregon out of compliance with the federal Drug Free Workplace Act,” it will still not be true. Oregon will NOT be out of compliance with the DFWA if we pass Measure 80.
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